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Real Food and Politics: S510 Food Safety Modernization Act and Raw Cheese Seizures

I’ve hesitated to jump into the fray lately, partly because I was attempting to avoid “one more thing” to research, and partly because I don’t feel very politically minded sometimes. It makes me tired to try to figure out who’s telling the truth and what the lawyer-speak in bills really means.

The real food blogosphere has been literally abuzz with two topics lately: FDA seizure of raw cheeses from two small, single-family-owned farms in rural America, and the Food Safety Modernization Act (S510), which bills itself as a measure to fight against outbreaks of food contamination but is seen by many as the end of small farms and farmer’s markets.

Everyone’s got an angle, you know? It’s impossible to find explicitly “neutral” reporting on the issue, but I really appreciate hearing from Senator Tom Coburn, M.D., as he details his concerns with the bill. This family doc and obstetrician and two-time cancer survivor says:

“While it is hard to pull out just 1 or 2 regulations in the bill that make the entire thing unpalatable, on the whole this bill represents a weighty new regulatory structure on the food industry that will be particularly difficult for small producers and farms to comply with (with little evidence it will make food safer). The following regulations are perhaps the most troubling:

Performance standards.


Standards for produce safety.

Other regulations in this bill are overly punitive and could set up an adverse relationship with industry. They include:

Administrative Detention of Food.

Suspension of Registration.


Mandatory Recall Authority.

To understand each point, read the full article here.

Apparently we’re studying and auditing governmental agencies and then doing little to nothing with the actual results. Coburn proposes a one-page “Ensuring Greater Food Safety Act,” about which he simply states: “This legislation fixes the real problem: Numerous government audits show that government inefficiencies are the root cause of our food safety problems.” Amen. Please read the two-page summary of the problems, including the root of the salmonella egg scare from this year HERE.

In my opinion, even this simple food safety approach is not perfect, as it calls for faster approval of new food safety technologies and lauds pasteurization as one reason our century has safer food than previous generations, but at least small farms could still survive, even if the next battle we have to fight is against government mandated irradiation of everything.

What Does S510 Really Say?

Here are some quotes from the Bill itself or summaries thereof, followed by my comments, rebuttals, questions, and wisecracks (I’m in italics):

“Require that each person (excluding farms and restaurants) who manufactures, processes, packs, distributes, receives, holds, or imports an article of food permit inspection of his or her records if the Secretary believes that there is a reasonable probability that the use of or exposure to such food will cause serious adverse health consequences or death.” Excluding farms and restaurants? Does this bill even mandate farming practices? I’m not seeing it…

“Improve tracking and tracing of fruits and vegetables that are raw agricultural commodities in the event of a foodborne illness outbreak.” Hmmm, buying directly from farmers would achieve that nicely, would it not? Good luck tracking a single piece of produce from farm to table through the industrial ag system…

“The Secretary shall, not less frequently than every 2 years, review and evaluate relevant health data and other relevant information, including from toxicological and epidemiological studies and analyses, to determine the most significant foodborne contaminants. Based on such review and evaluation, and when appropriate to reduce the risk of serious illness or death to humans or animals or to prevent adulteration of the food under section 402 of the Federal Food, Drug, or Cosmetic Act (21 U.S.C. 342) or to prevent the spread of communicable disease under section 361 of the Public Health Service Act (42 U.S.C. 264), the Secretary shall issue contaminant-specific and science-based guidance documents, action levels, or regulations. Such guidance, action levels, or regulations shall apply to products or product classes and shall not be written to be facility-specific.” (It will be great when after 20 years of these reports, raw milk and raw the cheeses are nowhere to be found on a single one…)

The Act would really give a lot of power to the FDA (notice it’s not the Department of Agriculture, where they would actually know a thing or two about proper farming practices), including the ability to institute mandatory recalls of food for a vast amount of subjective reasons. Food producers would be subject to more paperwork, more fees, and likely too many expensive hoops to jump through to be viable for small farmers.

The FDA could tell farmers how they have to grow and harvest their crops and stop the production of anything that is deemed “adulterated” or “unsafe.” The specifications on all these are much too broad and would truly begin to lose the power of choice for farmers, getting closer to a communistic type of agriculture.

Is there even a threat of food-borne illness worth fighting?

“Incident rates of food-borne illness have actually been declining for more than a decade, in spite of higher consumption of the raw foods that are most often associated with outbreaks of food-borne illness. For example, there were 51.2 cases of confirmed food-borne bacterial contamination per 100,000 people in 1996. The rate fell by a third by 2009—to 34.8 cases per 100,000 people.”

And is this true? “Meat, poultry, and dairy products—the most common sources of food-borne illness—are regulated by the Department of Agriculture and are not addressed in this bill.” If so, there may still be a cause for concern, but it’s not even related to the raw milk/raw cheese issue.

A thought I can really agree with, no matter what is in the nitty gritty of the bill: “In the end, however, as much as we might wish it to be otherwise, food-borne illness will always be with us. We are enveloped by microbes, and more than 200 known diseases are transmitted through food. Tragically, some 5,000 deaths are related to food-borne diseases each year, according to the Centers for Disease Control. The most severe cases tend to occur in the very old, the very young, and those with compromised immune system function.” As tragic as 5,000 deaths are, many, many more die from other preventable problems that would be better worth our government’s time and our money.


Read more:

If you feel like taking some action, here are some ideas:

  • Here is the text of S510, introduced in March 2009 and amended (changed) in December of the same year.
  • Click HERE for an article on the possible closure of the bill any second now, including how your senators have voted so far and the number to the Capitol Switchboard.
  • HERE is an easy message to sign online urging your senators to vote No.
  • If you want to write your own or give your elected representatives a phone call, you can do both with links here.

Also head to the bottom of this post for “what can we do?”

I admit that at first, I wasn’t too keen on getting politically involved. It’s not that I never call my representatives or send emails, but I was thinking that farms and food might not be as important as, say, the sanctity of human life. Then when I was talking to my mom and trying to break down the situation for her opinion, I was getting pretty worked up about it.

I realized that this IS an important topic, because if we can’t choose our own food, we’re no longer in control of our family’s health. As much as I need to protect the lives of the helpless unborn, I also need to protect the lives and health of my own family. I’m frustrated and angry that the government would try to “save” us from food-borne illness by industrializing the system and hurting small farmers and small businesses. That’s precisely the opposite of what needs to be done!

The Raw Cheese Seizures: Morningland Dairy

In a raid in California, some cheese originally from Morningland Dairy in Missouri was seized. Seven weeks later, after unknown storage conditions (it was transported in coolers without ice packs; was it refrigerated after that?), it was tested. Two kinds of cheese tested positive for both Listeria monocytogenes and Staphylococcus aureus. Listeria can cause flu-like symptoms in healthy people but potentially death in those with weakened immune systems, but Staph almost always causes a serious reaction. (source) No illnesses have been reported in all of Morningland’s 30-year history of making and selling cheese all over the country.

Morninging agreed to a voluntary recall of over 60,000 pounds of cheese, but they’ve been in a battle with the FDA ever since. The FDA has mandated that they stop selling cheese, so $250,000 worth of product sits in storage while they dump their milk week after week.

I really get the impression that Morningland is trying to do the right thing. Their entire facility tested negative for Listeria when 100 swabs were taken in September 2010, and they want to have all their cheese tested so that they can sell it, not destroy it. There was another test that apparently showed the presence of Listeria, but the collection of the cheese is under question. Their response to the FDA from their website is very professional and unemotional, and it just makes sense.

Without knowing any more than this ONE piece of evidence, the whole thing sounds fishy: An entire farm’s 6-month production of cheese has to be recalled and destroyed because two kinds tested positive for Listeria half the country away? Wouldn’t anyone with common sense agree that contamination could have happened at many points along the cheese’s route from Missouri to California? Just redo the testing at the farm or with properly collected cheese from the 50,000 pounds just sitting there. It’s not doing anything else, right?

Read more:

The Raw Cheese Seizures: Estrella Creamery

This article details the October closure of Estrella Creamery in Washington state, a family farm where they make award-winning raw cheeses. The problems there started in the spring during a routine state department of agriculture inspection. Some swabs turned up Listeria monocytogenes, a bacteria found in animal feces, in both the cheese and the facility.

Estrella voluntarily issued a recall on the affected cheese and aggressively went to work cleaning up the tainted “cave” where cheese is aged. After a few more tests over the next six months tested positive for Listeria – although it’s unclear whether the bacteria was actually found in anymore cheese or just on site – the FDA requested that Estrella recall 100% of their cheese. They cannot issue mandatory recalls, although that is one major point that would change under the proposed S510.

Estrella refused, stating that to recall all their cheese would effectively put them out of business. They believe that only affected cheese should remain off the market. The FDA pushed back with court papers and simply took all the cheese. As a result, folks are up in arms and trying to help the Estrellas save their livelihood.

As a perennial seeker of balance and the truth, I dug as far as I could into the story. There are some major differences between the Morningland case and Estrella:

  1. Estrella had a history of contamination that they were not able to eradicate over six months. While I believe they made efforts, apparently they couldn’t get rid of the Listeria by August.
  2. The bacteria was tested directly at the farm and found in both the cheese and the storage rooms.
  3. I understand that the swabs in August may have turned up the bacteria only in the facility and not in the cheese, but according to the FDA, the Estrellas cut some corners on their cleanup work. The inspection report states that (1) finished cheese was being cut and wrapped in the cheese room where Listeria had still been detected in August, (2) some of the lot from FDA tested samples that were positive for bacteria remained stored on the shelf with other aging cheese, and (3) “the owner was observed tasting the cheese and placing the uneaten portion back into the cheese wheel.” I would expect a greater degree of caution, especially when being watched.

Read more:


It’s really easy to start asking questions and poking holes in all these stories. Here are some of the most common point-counterpoints:

  • No one got sick from the cheese, so it’s probably not really contaminated.
    • A: Symptoms of listeria poisoning, for most people, would present as a flu. People could have been sick and not realized the cause.
  • Government shouldn’t tell us what to eat!
    • A: Unless you’re continually visiting your farmer for every piece of food you eat, aren’t you glad there’s someone who is making sure the conditions are sanitary? An acquaintance once told of visiting an Amish farm for raw milk and realizing that raw chicken was stored in the same refrigerator and was leaking onto the milk and cream. That’s something I would want to know, and as much as I try to get to know my farmers, I do shop at stores. I need someone to draw the line. The government may not do a perfect job of that, but they need to be involved in some way.
  • Raw milk cheese is safe!
    • A: Most foods properly prepared and stored are. Sometimes, though, spinach, peanut butter, jalapenos, and eggs are not safe. For myself and my children, I’d like to be aware of any farmer cutting corners or struggling to control a bacteria problem. I do think, however, that Estrella should be given more time to fix their issues and that Morningland deserves to be able to test their cheeses on site and be exonerated of all consequences if the tests come back negative.

Here’s a summary of all the issues from the Farm to Consumer Legal Defense Fund, and if you want to hear what other bloggers are saying, tons of posts are linked up to Kelly’s Save Farm Freedom Carnival. There are definitely some interesting and worthwhile reads there; I especially appreciated Stanley Fishman’s contributions.

What to Do Now?

Both Morningland Dairy and Estrella Creamery have legal funds going to help them save their farms, each in the amount of about a quarter million dollars. I donated to Morningland right away when I read their story, and I still feel glad that I did now that I dig into the facts. I sure wish the dairy could just have another official testing to clear the waters and be given a chance. I’m not sure that I’ll give to Estrella’s cause, just because there seem to be so many more unanswered questions. I also think they deserve to continue to have a chance to clean up the cheese, and if they want to pay for testing on the batches of cheese already finished before selling it, then they should be able to. You know me…I hate wasting food!

Can we save all family farms by helping these two? Not really, but we can make a point that Americans support and desire small farms and local food. To make systemic change, we’ve got to go to the top.

In the end, I do think we need to make our voices heard on Senate bill 510, the Food Safety Modernization Act. Call the Capitol switchboard at 202-224-3121 and ask for any federal elected official to leave your opinion, or email a Senator here. Let them know you:

  • oppose S510, the Food Safety Modernization Act
  • want to support small farmers who can’t afford more paperwork, fees, and regulations
  • agree that safe food is important but (1) food-borne illnesses have actually decreased in the past decade, and (2) the safest food generally has the shortest chain from farm to table, which won’t happen with over-industrialization of the food system.
  • would rather see the USDA (agriculture) have a greater role in food safety on farms, instead of the FDA
  • feel strongly about the average citizen retaining their right to buy food from whomever they please and consume it as they like

You also might want to take a second to email family and friends who would be willing to take action as well. The most dangerous weapon is ignorance. People need to understand what is happening to our food system and what changes could come.

Now dear readers…will you weigh in? Where do you stand on the Food Safety Modernization act? Should we be concerned? Can we make a difference?

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11 thoughts on “Real Food and Politics: S510 Food Safety Modernization Act and Raw Cheese Seizures”

  1. I somehow missed this the day it went live. I saw your post stating you’d do it, then today’s post referencing it again. I’m in AZ and both of my senators have been opposing this in the voting process, so my letter thanked them for the opposition and asked that they continue to oppose it. I had also contacted my friends in other states and asked them to make their feelings known-especially those in states whose senators were for it.

    Thanks to those who posted additional links with info. I don’t think anyone is opposed to ACTUAL food safety, but this bill does nothing to address the real issues. People rarely get ill from eating raw food from local farms, but that’s precisely the farmer that will be put out of business by this.

    Also, in a related news story on this bill the issue of food smuggling was brought up. Did anyone else even know this was a problem?? Supposedly there were some companies that imported $40 million worth of raw honey illegally because they wanted to avoid paying $80 million in fees (sounds like our government!). So some supporters of this bill are using this as a means to justify passing it. Really? This bill will cost $1.6 billion. So we’ll spend that to prevent $40 million in smuggling? O. K. Did anyone even get sick from that raw honey? I’m not fooled by the pretense!

  2. This just makes me sad. We are still eating our Morningland cheese! We chose not to give in to the spirit of fear and pray that the dairy will be up and running again soon.

  3. Thanks for this post Katie. It’s so hard to tell what’s actually in the draft of a bill, as often those voting on the bill don’t even know. I had worked as an intern many years ago in our Statehouse and was fascinated (and disgusted) by the process. Legislators would vote on a bill without even looking at it, ALL THE TIME.

  4. Kimberly Hartke

    Just so you have the latest, here is the press release I put out for Pete Kennedy, President of the Farm-to-Consumer Legal Defense Fund who is working with both Morningland and Estrella Creamery. This points out that the FDA has neglected to test the listeria to determine if it is the subtype that causes illness. Most listeria is not harmful, and it is very normal to find it. The zero tolerance policy for listeria is an impossible standard.

  5. Thanks for writing about raw cheese and Estrella farms. I actually agree with the recall in this case which is NOT a popular view in the organic/locavore/real food circles.

    BUT – I am pregnant. Listeria can kill an unborn baby without the mother even having any symptoms. How do they know no one was affected? Did they survey how many women at Estrella cheese and had miscarriages?

    I think food safety is very important and even though I am a “tea partier”, I do think government plays an important role. We need SANE regulations that make sense – not NO regulations at all. I’m not sure S510 is an appropriate way to keep our food safe – I don’t trust the FDA very much, largely because of research I’ve done on “generally regarded as safe” and food lobbying issues (the U.S. has lots of GRAS chemicals that are banned across Europe and other developed nations.) This gives an unelected body that does not answer to the people, and is funded NOT just by taxpayers but by the companies they are supposed to regulate, too much power. Too much power with too little accountability with too many conflicts of interest.

    Upton Sinclair’s book, The Jungle, was instrumental in the creation of the FDA. Anyone who thinks we need no USDA or FDA should read that book and see what was going on before the agencies were created.

  6. One of the main concerns with this legislation is that it has very little legislation in it. It will be up to the FDA to determine the implementation of the regulations. Which means — we the people will have NO say over it at all. It will be out of Congress and in to the administrative realm and out of the reach of voters.

    I’m sad to say that my Senator, Harry Reid, has decided to vote for this bill because he feels it is the gov’t’s job to “protect” us from those big bad family farms. I keep writing. Hopefully someday….!

  7. Great post! And to anyone who is on the fence about whether or not to contact their representatives, it’s quite easy and you end up with a little patriotic pep in your step the rest of the day. It does matter and it makes a difference!

    Thanks, Katie!

  8. I was unaware of this issue (we don’t have t.v., so sometimes I’m a little slow!)….but it seems to fit. I get milk from a local rancher who has one dairy cow, and sells the raw milk and cheese to a few of us. She had a friend who was shut down from a similar situation by the USDA. She was even threatened with jail time! I still buy my milk raw, and will as long as I can. I don’t understand why the gov’t cares what milk I buy! I am more leery of their approved foods than I am of raw foods! I am all for petitioning gov’t officials. However, I am afraid our dependence cannot lie on the gov’t. The more I think about it, the more I feel being self sustaining is the way to go. Not that I am at all close to that!
    Thank you so much for the information Katie!

  9. I’ve been following this bill for awhile. I’m already on a first name basis with a few of my elected officials’ staff. Most often I contact them with a simple “I support” or “I oppose” opinions on upcoming legislation. However with this bill I took quite a different approach. They all got long emails containing point by point opinions of the legislation. However, unlike most real food advocates I touched on the FCLDF’s talking points only briefly. The vast majority of my e-mails (which were followed by letters and phone calls) focused on the economy, jobs, the deficit and the burden it would place on an already overburdened FDA. I used real numbers to show the potential harm this bill could do to my state despite it’s noble purpose.

    I think it’s important not only to show how this harms Americans’ freedom, but also to show how it will have a snowball effect to things other than food. Politicians like numbers, we need to give them some they can crunch (and use as political cover for the flack they will receive if they vote against it)

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